IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

 v. :

:

KEYNAN GREEN : NO. 05-544-1

MEMORANDUM

Dalzell, J. May 5, 2006

Defendant Keynan Green, charged here with ten counts of

drug and gun offenses, has filed a motion to suppress evidence

seized pursuant to a search warrant that Magistrate Judge

Caracappa issued on August 22, 2005. As Green only questions the

adequacy of the affidavit of probable cause that grounds the

search warrant for 4509 Devereaux Street in lower Northeast

Philadelphia, we measure the affidavit against rather settled

jurisprudence.

Factual Background

Four times in June of 2005, Philadelphia Police Officer

Kenneth Bethea of the Intensive Drug Investigation Squad

("IDIS"), acting undercover, bought crack from Keynan Green. 

August 22, 2005 Aff. of Officer Andrew Rehr ("Rehr Aff.") ¶ 4. 

In total, Green sold Bethea 61.6 grams. Id. Each transaction

took place in Philadelphia, and members of IDIS and

Philadelphia's DEA Task Force saw all four transactions. Id. On

two of these occasions, June 17 and June 22, 2005, surveillance

officers watched Green leave 4509 Devereaux Street and drive

directly to the pre-arranged sale location. Id. ¶ 5. On a fifth

date in June, Bethea called Green to buy crack, and Green

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directed Bethea to go to the intersection of Devereaux and

Jackson Streets, near the 4500 block of Devereaux. Id. ¶ 6. 

When Bethea called Green to finalize their arrangements that day,

Green never answered, and the deal was not consummated. Id. 

On August 11, 2005, Magistrate Judge Welsh signed a

complaint and warrant charging Green with distributing and

possessing with intent to distribute cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Id. ¶ 7. On August 22,

2005, officers went to 4509 Devereaux Street to arrest Green. 

When Green exited, he saw the officers, fled, and dropped a clear

plastic baggie with fifteen packets and four other baggies

within, each containing crack. Id. ¶ 8. The total net weight

was reported to be 43.4 grams. Id.

After arresting Green, DEA Task Force Officer Andrew

Rehr submitted an application and affidavit for search warrant to

Judge Caracappa. In addition to relating the above facts, Rehr

described his background as a Philadelphia police officer for

twenty-four years who had been assigned to the Department's

Narcotics Bureau for thirteen years and to the DEA Task Force for

seven years. Rehr Aff. ¶ 1. Rehr also communicated his

suspicion, based on his experience, that Green had records, drug

contraband, and weapons hidden somewhere. Id. ¶ 10.

After Judge Caracappa signed a search warrant, DEA Task

Force agents entered 4509 Devereaux Street. They seized bags

containing over 100 grams of cocaine base and $850 in currency. 

They also seized a .45 caliber Ruger semi-automatic pistol with

Case 2:05-cr-00544-JHS Document 56 Filed 05/05/06 Page 2 of 9
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eight rounds of .45 caliber ammunition, and a Winchester

ammunition box with thirty-one rounds of .380 ammunition. 

Additionally, the agents found assorted paraphernalia including a

heat sealer and an electronic scale. The search also produced a

Pennsylvania driver's license, MasterCard credit card, and

Meineke receipt, all in Green's name, as well as mail addressed

to him. See Gov.'s Mem., at 3-4. 

On September 21, 2005, a Grand Jury indicted Green for

distribution of cocaine base (four counts), possession with

intent to distribute cocaine and cocaine base (four counts),

possession of a firearm in furtherance of a drug-trafficking

crime (one count), and being a felon in possession of a firearm

(one count). In essence, Green's suppression motion contends 

that Rehr's affidavit was deficient because it failed explicitly

to connect his drug dealing with 4509 Devereaux Street.

II. Legal Analysis

1. Probable Cause

A district court's review of a magistrate judge's

probable cause determination is deferential. The district court

must decide merely whether the magistrate judge had a

"substantial basis" for finding probable cause. United States v.

Whitner, 219 F.3d 289 (3d Cir. 2000) (quoting Illinois v. Gates,

462 U.S. 213, 236 (1983)); see also United States v. Hodge, 246

F.3d 301, 305 (3d Cir. 2001) (Alito, J.) (same). The district

court does not independently assess whether probable cause

existed but rather "determine[s] only whether the affidavit

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4

provides a sufficient basis for the decision the magistrate judge

actually made." United States v. Jones, 994 F.2d 1051, 1057 (3d

Cir. 1993).

Then-Circuit Judge Alito's analysis in Hodge is

pointedly relevant to Green's case. In Hodge, Virgin Islands

police arrested Hodge after watching him attempt a drug deal,

flee, and discard 250 grams of crack. 246 F.3d at 304. 

Following the arrest, an officer filed an affidavit seeking a

search warrant for Hodge's home. Id. In that affidavit, the

officer described Hodge's flight, possession, and arrest. Id. 

"Based upon his training and experience," the officer swore,

"persons involved in the receipt and distribution of controlled

substances commonly keep within their residences evidence of

their criminal activity." Id. at 304-05. This excerpt was the

only part of the affidavit that touched on Hodge's home. 

Relying on the officer's affidavit, a magistrate found

probable cause to search the home and issued a warrant. Id. at

305. During the search, the police found 600 grams of crack,

thirty grams of marijuana, live ammunition, and a machine gun. 

Id. Before trial, the district court suppressed this evidence on

the basis that the affidavit failed to establish a nexus between

Hodge's drug activity and his home. Id. On appeal, the

Government argued that the affidavit provided a substantial basis

for finding probable cause and that, in any event, the officers

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1. Judge Mansmann and Judge Fullam (sitting by designation)

joined Judge Alito.

5

relied on the warrant in good faith. Id. The panel agreed. 1

Id. at 304.

At the outset, the panel addressed the very argument

Green makes here and emphasized that "direct evidence linking the

place to be searched to the crime is not required for the

issuance of a search warrant." Id. at 305 (quoting United States

v. Conley, 4 F.3d 1200, 1207 (3d Cir. 1993)). While the panel

acknowledged that no direct evidence linked Hodge's home to his

drug dealing, it underscored that "there was significant evidence

from which the magistrate judge might reach that conclusion." 

Id. at 306. First, because Hodge possessed a large quantity of

crack when he was arrested, carried drugs in the front of his

pants to avoid detection, and used a rental car (also,

presumably, to avoid detection), the panel inferred that he was

"an experienced and repeat drug dealer who would need to store

evidence of his illicit activities somewhere." Id. (emphasis

added). From that inference, the panel then extrapolated, "It is

reasonable to infer that a person involved in drug dealing on

such a scale would store evidence of that dealing at his home." 

Id. Second, the panel noted that Hodge's home was in the same

city where he attempted the drug deal, there was probable cause

to arrest him on drug charges, and the police officer's suspicion

-- in light of his counter-narcotics experience -- was entitled

to at least some deference. Id. at 307.

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2. At the conclusion of the suppression hearing this day,

Green's able defense counsel made an offer of proof regarding the

testimony of a witness who, it is claimed, would testify that ¶ 8

of Officer Rehr's affidavit was incorrect insofar as it

referenced discarding of packets and baggies "each containing

alleged crack cocaine." See Rehr Aff. ¶ 8. This proffer, even

if accepted, does not warrant even the exploration of a Franks

hearing because the proffered testimony does not dispute the

defendant's link to 4509 Devereaux Street mentioned in that

paragraph or in the recitation in ¶ 5 regarding two prior

(continued...)

6

The affidavit here, like the one in Hodge, showed that

Green was an experienced and repeat drug dealer. In June of

2005, Green sold crack to Bethea four times. Rehr Aff. ¶ 4. As

a drug dealer, Green, like Hodge, needed to store his contraband

and records somewhere. See Hodge, 246 F.3d at 306. And, as in

Hodge, Green's home was in the same city where he sold drugs, id.

¶¶ 3-4, there was ample probable cause to arrest him on drug

charges, id. ¶¶ 7-8, and the affiant's suspicions as a seasoned

law enforcement officer are entitled to some deference, id. ¶¶ 9-

10. 

Even more compelling than in Hodge, the affidavit here

actually linked this site to Green's drug dealing. First, on

June 17, 2005 and June 22, 2005, surveillance officers watched

Green exit 4509 Devereaux Street and drive directly to the prearranged sale location. Id. ¶ 5. Second, on a fifth date in

June, Green told Bethea that the crack sale would occur at "an

intersection at the corner of the 4500 [sic] of Devereaux", and

he directed Bethea to drive to that intersection. Id. ¶ 6. 

Last, when the police arrested Green, "he exited 4509 Devereaux

Street", fled, and dropped 43.4 grams of crack. Id. ¶ 8.2

Case 2:05-cr-00544-JHS Document 56 Filed 05/05/06 Page 6 of 9
2. (...continued)

occasions ("Green exit[ed] 4509 Devereaux Street" on June 17 and

June 22, 2005 and then immediately "sold the crack to Officer

Bethea"). Id. ¶ 5.

7

To be sure, as Green's counsel noted at oral argument,

nowhere in Officer Rehr's affidavit is there language that states

that "4509 Devereaux Street was Green's stash house" or words to

that effect. Instead, Officer Rehr ended his affidavit with the

conclusion that "I believe that there is probable cause to search

4509 Devreaux Street for controlled substances [etc.]." 

We are aware of no jurisprudence in this Circuit or

from the United States Supreme Court that would require an

affiant to incant, in haec verba, words to the effect that "this

place is where defendant runs his drug operation." Indeed, the

teaching of Hodge is quite to the contrary. Within the four

corners of Officer Rehr's affidavit it is pellucid that law

enforcement did not pick 4509 Devereaux Street out of the air,

but had seen that site recur as the venue for some aspect of

Green's drug operation. Search warrant jurisprudence requires no

more. 

2. Good Faith Exception 

Even if Judge Caracappa lacked a substantial basis for

finding probable cause, Green's motion would fail unless he could

refute the good faith exception. Under that exception, the

suppression of evidence "'is inappropriate when an officer

executes a search in objectively reasonable reliance on a

warrant's authority.'" Hodge, 246 F.3d at 307 (quoting United

Case 2:05-cr-00544-JHS Document 56 Filed 05/05/06 Page 7 of 9
8

States v. Williams, 3 F.3d 69, 71 n.2 (1993)). "The test for

whether the good faith exception applies is 'whether a reasonably

well trained officer would have known that the search was illegal

despite the magistrate [judge's] authorization.'" United States

v. Loy, 191 F.3d 360, 365 (3d Cir. 1999) (quoting United States

v. Leon, 468 U.S. 897, 922 n.23 1984)). The mere existence of a

warrant usually suffices to prove that an officer conducted a

search in good faith and justifies application of the good faith

exception. Hodge, 246 F.3d at 308 (citing Leon and Williams). 

Here, to refute the good faith exception, Green would

have to show that (1) Judge Caracappa issued the warrant in

reliance on a deliberately or recklessly false affidavit; (2)

Judge Caracappa abandoned her judicial role and failed to perform

her neutral and detached function; (3) the warrant was based on

an affidavit "so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable;"

or (4) the warrant was so facially deficient that it failed to

particularize the place to be searched or the things to be

seized. Williams, 3 F.3d at 74 n.4. Green does not seriously

contend, nor could he, that any of these apply. 

Under settled jurisprudence, it was entirely reasonable

for the officers to rely on Judge Caracappa's authorization to

search 4509 Devereaux Street for drugs, drug paraphernalia, and

guns. Hodge, 246 F.3d at 309; Williams, 3 F.3d at 74. 

Case 2:05-cr-00544-JHS Document 56 Filed 05/05/06 Page 8 of 9
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

 v. :

:

KEYNAN GREEN : NO. 05-544-1

ORDER

AND NOW, this 5th day of May, 2006, upon consideration

of defendant's motion to suppress physical evidence (docket no.

52) and the Government's response thereto, and after a hearing

this day and in accordance with the foregoing Memorandum, it is

hereby ORDERED that the motion is DENIED.

BY THE COURT:

 ______________________________

 Stewart Dalzell, J.

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